[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 28. Provisions Affecting Funds Held in Trust]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5720-5729]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 28. Provisions Affecting Funds Held in Trust

Diverting From Highway Trust Fund

Sec. 28.1 The appropriation for a new purpose not authorized by law of 
    funds held in trust in the Treasury for a different purpose, is 
    legislation, changing the nature of the trust fund and not in order 
    on an appropriation bill.

    On May 28, 1959,(5) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 7349), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 5. 105 Cong. Rec. 9351, 86th Cong. 1st Sess.

---------------------------------------------------------------------------

[[Page 5721]]

           Forest Highways (Trust Fund) (Liquidation of Contract 
                               Authorization)

        For payment of obligations incurred in carrying out the 
    provisions of title 23, United States Code, section 204, pursuant 
    to contract authorization granted by title 23, United States Code, 
    section 203, to remain available until expended, $37,100,000, to be 
    derived from the ``Highway trust fund'', which sum is composed of 
    $33,350,000, the remainder of the amount authorized to be 
    appropriated for the fiscal year 1959, and $3,750,000, a part of 
    the amount authorized to be appropriated for the fiscal year 1960: 
    Provided, That the unexpended balances as of June 30, 1959, of 
    appropriations heretofore granted under the head ``Forest 
    highways'' or ``Forest highways (liquidation of contract 
    authorization)'' are rescinded and shall be credited to 
    miscellaneous receipts of the Treasury: Provided further, That this 
    appropriation shall be available for the rental, purchase, 
    construction, or alterations of buildings and sites necessary for 
    the storage and repair of equipment and supplies used for road 
    construction and maintenance, but the total cost of any such item 
    under this authorization shall not exceed $15,000.
        Mr. [Wilbur D.] Mills [of Arkansas]: Mr. Chairman, a point of 
    order.
        The Chairman: (6) The gentleman will state it.
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 6. Aime J. Forand (R.I.).
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        Mr. Mills: Mr. Chairman, I make the point of order against the 
    language in the bill beginning on line 22, page 12, and ending with 
    line 17, page 13, on the ground that the paragraph contains 
    language which proposes to change existing law and is therefore 
    legislation on an appropriation bill.
        I direct the Chairman's attention to this particular language 
    on page 13, line 3: ``to be derived from the highway trust fund.'' 
    There is no authorization for expenditure from the highway trust 
    fund for the purposes proposed in this paragraph.
        The Chairman: Does the gentleman from Georgia desire to be 
    heard on the point of order?
        Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, the 
    point of order is well taken. We concede the point of order.
        The Chairman: The Chair sustains the point of order.

    In a similar case, on May 20, 1958,(7) language in an 
appropriation bill appropriating funds for the federal aid highway 
trust fund for expenses of forest roads and trails, had been held to be 
unauthorized and not in order. On that day, during consideration in the 
Committee of the Whole of the commerce appropriation bill (H.R. 12540), 
a point of order was raised against the following provision:
---------------------------------------------------------------------------
 7. 104 Cong. Rec. 9065, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

                        Forest highways (trust fund)

         For expenses, not otherwise provided for, necessary for 
    carrying out the provisions of section 23 of the Federal Highway 
    Act of November 9, 1921, as amended (23 U.S.C. 23, 23a), to remain

[[Page 5722]]

    available until expended, $30 million, to be derived from the 
    highway trust fund; which sum is composed of $22,250,000, the 
    remainder of the amount authorized to be appropriated for the 
    fiscal year 1958, and $7,750,000, a part of the amount authorized 
    to be appropriated for the fiscal year 1959: Provided, That this 
    appropriation shall be available for the rental, purchase, 
    construction, or alterations of buildings and sites necessary for 
    the storage and repair of equipment and supplies used for road 
    construction and maintenance, but the total cost of any such item 
    under this authorization shall not exceed $15,000.
        Mr. [Robert E.] Jones [Jr.] of Alabama: Mr. Chairman, I make a 
    point of order against the language contained on line 16 
    immediately following the language ``$30 million to be derived from 
    the `highway trust fund' '' as being legislation on an 
    appropriation bill and therefore subject to a point of order.
        The Chairman: (8) Does the gentleman from Georgia 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
 8. Herbert C. Bonner (N.C.).
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        Mr. [Prince H.] Preston [Jr., of Georgia]: Briefly, Mr. 
    Chairman. The reason this language was included in the bill is that 
    it was requested by the Bureau of the Budget, and for the reason 
    further that 95 percent of all forest highways are part of the 
    Federal aid system. The committee felt, since that was true, it was 
    a logical step to put the whole thing under the Federal aid system 
    rather than make a direct appropriation for forest highways and 
    public lands highways.
        I do concede that the point of order is well taken; it is 
    legislation.
        The Chairman: The Chair has examined the question and finds 
    that the language is subject to a point of order and therefore 
    sustains the point of order.

Forest Roads and Trails

Sec. 28.2 Language in an appropriation bill appropriating funds in the 
    federal aid highway trust fund for expenses of forest roads and 
    trails was held not in order where no authorization existed for the 
    expenditure from the highway trust fund for those proposed purposes

    On Feb. 9, 1960,(9) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R 10234), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 9. 106 Cong. Rec. 2348, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

             Forest Highways (Trust Fund) (Liquidation of Contract 
                                 Authorization)

            For payment of obligations incurred in carrying out the 
        provisions of title 23, United States Code, section 204, 
        pursuant to contract authorization granted by title 23, United 
        States Code, section 203, to remain available until expended, 
        $36,000,000, to be derived from the ``Highway trust fund''; 
        which sum is composed of $2,250,000, the remainder of the 
        amount authorized to be

[[Page 5723]]

        appropriated for the fiscal year 1959, and $33,000,000, the 
        amount authorized to be appropriated for the fiscal year 1960, 
        and $750,000, a part of the amount authorized to be 
        appropriated for the fiscal year 1961: Provided, That the 
        unexpended balance as of June 30, 1960, of appropriations 
        heretofore granted under the head ``Forest highways 
        (liquidation of contract authorization)'' is hereby rescinded: 
        Provided further, That this appropriation shall be available 
        for the rental, purchase, construction, or alterations of 
        buildings and sites necessary for the storage and repair of 
        equipment and supplies used for road construction and 
        maintenance but the total cost of any such item under this 
        authorization shall not exceed $15,000

        Mr. [Wilbur D.] Mills [of Arkansas]: Mr. Chairman, I rise to 
    make a point of order against the language appearing in the bill on 
    page 13, line 16, through line 11 on page 14
        The language therein contained is, in my opinion, subject to a 
    point of order on the ground that there is no authorization for 
    this action by the Appropriations Committee. The language is 
    legislation in an appropriation bill.
        The Chairman: (10) Does the gentleman from Georgia 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Aime J. Forand (R.I.)
---------------------------------------------------------------------------

        Mr. [Prince H.] Preston [Jr., of Georgia]: Yes, Mr. Chairman.
        I would like to say that the language carried in the bill is as 
    it was presented to the committee by the Bureau of Roads. The 
    language was carried in the bill last year, and a point of order 
    was made against it, and we conceded the point of order, which we 
    do in this instance, because it clearly is subject to a point of 
    order. But it is a continuing difficulty that we have to deal with 
    later on.
        The Chairman: The Chair sustains the point of order.

Highway Trust Fund, Administrative Expenses

Sec. 28.3 Language in an appropriation bill appropriating funds in the 
    federal aid highway trust fund for administrative expenses of the 
    Internal Revenue Service for collection and allocation of taxes to 
    the fund was held to be unauthorized by law and therefore 
    legislation and not in order.

    On Mar. 4, 1958,(11) the Committee of the Whole was 
considering H.R. 11085, a bill making appropriations for the U.S. 
Treasury and the Post Office Departments. At one point the Clerk read 
as follows:
---------------------------------------------------------------------------
11. 104 Cong. Rec. 3410-12, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

                          Internal Revenue Service

                           Salaries and Expenses

        For necessary expenses of the Internal Revenue Service, 
    including purchase (not to exceed 100 for replacement only) and 
    hire of passenger motor vehicles; and services as authorized by 
    section 15 of the act of August 2, 1946 (5 U.S.C. 55a), and of 
    expert witnesses at such rates as may be determined by

[[Page 5724]]

    the Commissioner; $322 million, together with $3,500,000 to be 
    derived from the fund established pursuant to section 209 of the 
    Highway Revenue Act of 1956: Provided, That not to exceed $200,000 
    of the amount appropriated herein shall be available for expenses 
    of instruction and facilities for the training of employees by 
    contract, subject to such regulations as may be prescribed by the 
    Secretary of the Treasury.
        Mr. [Hale] Boggs [of Louisiana]: Mr. Chairman, I make the point 
    of order against the language appearing on page 3, in lines 19 and 
    20, and the portion of line 21 preceding the proviso, that the 
    language proposes to change existing law and is legislation on an 
    appropriation bill. . . .
        The Chairman:(12) The Chair thanks the gentlemen for 
    their able presentation and is prepared to rule.
---------------------------------------------------------------------------
12. Brooks Hays (Ark.).
---------------------------------------------------------------------------

        This matter does present some difficulty, of course, and 
    requires an interpretation of section 209 of the Federal-Aid 
    Highway Act of 1956. Reference to the legislative history would 
    indicate that it was the intention of the Congress to preserve 
    inviolate trust funds for highway purposes, with such indirect use 
    as appeared clearly from the act itself. And, when we take that 
    into account and the precedents with reference to the disposition 
    of trust funds, I think it appears that the language is not 
    sufficiently broad to cover the proposed appropriation in this 
    case, and in the absence of an authorization otherwise, the point 
    of order should be sustained

Sec. 28.4 Language in an appropriation bill appropriating funds in the 
    federal aid highway trust fund for payment of obligations incurred 
    pursuant to the contract authorization granted for public lands 
    highways, was held to be legislation and not in order.

    On May 20, 1958,(13) during consideration in the 
Committee of the Whole of the Commerce Department appropriation bill 
(H.R. 12540), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
13. 104 Cong. Rec. 9067, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                       Public lands highways (trust fund)

            For payment of obligations incurred pursuant to the 
        contract authorization granted by section 106 of the Federal-
        Aid Highway Act of 1956 (23 U.S.C. 155), to remain available 
        until expended, $2,692,000, to be derived from the highway 
        trust fund; which sum is composed of $692,000, the balance of 
        the amount authorized to be appropriated for the fiscal year 
        1958, and $2 million, a part of the amount authorized for the 
        fiscal year 1959.

        Mr. [Robert E.] Jones [Jr.] of Alabama: Mr. Chairman, I make a 
    point of order against the language appearing on line 8, 
    `$2,692,000, to be derived from the ``highway trust fund'' as being 
    legislation on an appropriation bill.
        Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, the 
    situation is the same with this item as the pre

[[Page 5725]]

    vious item, and we concede the point of order.
        The Chairman: (14) The Chair has examined the 
    language and sustains the point of order.
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14. Herbert C. Bonner (N.C.).
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Transfer From Unemployment Trust Fund

Sec. 28.5 Language in an appropriation bill providing for transfer from 
    the unemployment trust fund a sum for expenses of the Bureau of 
    Employment Security was held to be legislation and not in order.

    On Mar. 27, 1958,(15) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 11645), a point of 
order was raised against the following provision:
---------------------------------------------------------------------------
15. 104 Cong. Rec. 5630, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                         Bureau of Employment Security

                             Salaries and Expenses

            For expenses necessary for the general administration of 
        the employment service and unemployment compensation programs, 
        including temporary employment of persons, without regard to 
        the civil-service laws, for the farm placement migratory labor 
        program; $6,219,000, of which $6,093,400 shall be derived by 
        transfer from the Federal unemployment account in the 
        unemployment trust fund, and of which $1,145,800 shall be for 
        carrying into effect the provisions of title IV (except section 
        602) of the Servicemen's Readjustment Act of 1944.

        Mr. [Melvin R.] Laird [of Wisconsin]: Mr. Chairman, I make a 
    point of order against the language on page 4 line 13 starting with 
    the word ``of'' and continuing through the word ``and'' on line 16. 
    I am not objecting to the provision to provide for the $6,093,400, 
    but rather the way in which it is being provided.
        On page 4 of this bill dealing with appropriations to the 
    Bureau of Employment Security in the Labor Department line 14 reads 
    as follows:

            $6,093,400 shall be derived by transfer from the Federal 
        unemployment trust fund.

        There is no provision in substantive law authorizing the 
    transfer of any sums from the unemployment account except to the 
    account of a State in the unemployment trust fund, which State has 
    applied for and been certified as eligible to receive an interest-
    free repayable advance for the purpose of replenishing its depleted 
    reserve account
        The Federal unemployment account is commonly referred to as a 
    State's loan fund. There is no valid basis for the transfer of 
    these funds from the unemployment trust fund to take care of the 
    expenses and salaries of the Bureau of Employment Security. This 
    transfer contravenes the intent and purpose of the provision for 
    the loan fund to assist the States which are in financial 
    difficulty to continue to make benefit payments.
        The Federal unemployment account is in no manner analogous to 
    the OASI

[[Page 5726]]

    and railroad retirement trust funds, which trust funds specifically 
    earmark all tax collections for crediting to the trust funds and 
    specifically authorize a transfer out of these trust funds of 
    amounts necessary to defray the cost of the OASI and railroad 
    retirement administration.
        An examination of section 904(h), which establishes the Federal 
    unemployment account in the unemployment trust fund, and of 
    sections 901 and 902, which provide for the computation of any 
    positive balance which is to go into the trust fund, and of section 
    903, which provides for the crediting of the positive balance to 
    the trust fund, and of section 1201, which provides for the making 
    of advances out of the Federal unemployment account, and of section 
    1202, which provides for the crediting of certain tax collections 
    directly to the Federal unemployment account, will clearly disclose 
    that there is no provision whatsoever for the use of funds in the 
    Federal unemployment account except for the single and sole purpose 
    of making repayable interest-free advances to the States.
        Mr. [John E.] Fogarty [of Rhode Island]: We concede the point 
    of order, Mr. Chairman.
        The Chairman: (16) The point of order is sustained.
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16. Eugene J. Keogh (N.Y.).
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District of Columbia Gasoline Tax Fund

Sec. 28.6 An appropriation for the salary and expenses of the office of 
    Director of Vehicles and Traffic out of the District of Columbia 
    Gasoline Tax Fund was held to be legislative since the Gasoline Tax 
    Act provides that revenue raised through its operation could only 
    be appropriated by Congress for road and street improvements and 
    repairs.

    On Apr. 2, 1937,(17) during consideration in the 
Committee of the Whole of the District of Columbia appropriation bill, 
a point of order was raised against the following provision:
---------------------------------------------------------------------------
17. 81 Cong. Rec. 3110, 3111, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            For paving, repaving, grading, and otherwise improving 
        streets, avenues, and roads, including temporary per-diem 
        services, surveying instruments and implements, and drawing 
        materials, and the maintenance of motor vehicles used in this 
        work, including curbing and gutters and replacement of curb-
        line trees where necessary, and including trees and parkings, 
        assessment and permit work and the several purposes provided 
        for in that paragraph, and salaries and expenses of the office 
        of the Director of Vehicles and Traffic, as follows, to be paid 
        from the special fund created by section 1 of the act entitled 
        ``An act to provide for a tax on motor-vehicle fuels sold 
        within the District of Columbia, and for other purposes'', 
        approved April 23, 1924 (43 Stat., p. 106), and accretions by 
        repayment of assessments.

        Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make the 
    point of

[[Page 5727]]

    order against the portion beginning in line 11 on page 71 after the 
    word ``work'', and beginning with the word ``including'', going 
    through lines 11, 12, and 13, on down to and inclusive of line 21, 
    on the ground that it is legislation and changes existing law. . . 
    .
        The Chairman: (18) The Chair is prepared to rule. 
    The gentleman from Oklahoma [Mr. Nichols] makes a point of order 
    against certain language appearing on page 71, beginning with the 
    word ``including'', in line 11, and extending to the end of the 
    paragraph.
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18. Jere Cooper (Tenn.).
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        The gentleman from Mississippi [Mr. Collins] in speaking in 
    opposition to the point of order, has called attention to certain 
    improvements that are provided for by the language included in this 
    part of the bill. The Chair would be inclined to agree with the 
    gentleman in the contention that he presents in all respects except 
    that relating to the question of salaries and expenses of the 
    office of director of vehicles and traffic. The Chair observes that 
    the office of director of vehicles and traffic is provided for in 
    the act to regulate traffic in the District of Columbia, and so 
    forth. An examination of this law clearly shows that the director 
    of vehicles and traffic has rather broad general duties to perform, 
    and it is not related alone to what might be imposed upon him in 
    connection with the Gasoline Tax Act. The Gasoline tax Act 
    provides, as was pointed out by the gentleman from Oklahoma, that--

            The proceeds of the tax, except as provided in section 840 
        of this title, shall be paid into the Treasury of the United 
        States entirely to the credit of the District of Columbia and 
        shall be available for appropriations by the Congress 
        exclusively for road and street improvements and repairs.

        The Chair is unable to see how that language would be broad 
    enough to authorize the payment of salaries for the director of 
    vehicles and traffic. The Gasoline Tax Act does not make provision 
    for the payment of the salaries to which the Chair has directed 
    attention. Therefore, salaries paid out of this fund would not be 
    authorized by law. For that reason the provision to which the point 
    of order is made would, in the opinion of the Chair, be legislation 
    on a general appropriation bill and would be subject to a point of 
    order.
        Therefore the Chair sustains the point of order.

Indians' Judgment Fund

Sec. 28.7 Language in an appropriation bill providing that a specific 
    amount of the appropriation shall be available from the judgment 
    fund appropriated for the Indians of California to be advanced in 
    part for payment of attorneys employed by any tribe under contracts 
    approved by the Secretary of the Interior, was held to be 
    legislation and not in order.

    On May 3, 1950,(19) during consideration in the 
Committee of the Whole of the Interior Department

[[Page 5728]]

appropriation bill (H.R. 7786), the following proceedings took place:
---------------------------------------------------------------------------
19. 96 Cong. Rec. 6304, 6305, 81st Cong. 2d Sess.
---------------------------------------------------------------------------

                                Tribal Funds

        In addition to the tribal funds authorized to be expended by 
    existing law, there is hereby appropriated $2,525,465 from tribal 
    funds not otherwise available for expenditure for the benefit of 
    Indians and Indian tribes, including pay and travel expenses of 
    employees . . . compensation and expenses of attorneys and other 
    persons employed by Indian tribes under approved contracts; pay, 
    travel and other expenses of tribal officers, councils, and 
    committees thereof . . . and employment of a recreational director 
    for the Menominee Reservation and a curator for the Osage Museum . 
    . . Provided, That $100,000 of the amount appropriated herein shall 
    be available from the judgment fund appropriated for the Indians of 
    California by section 203 of the act of April 25, 1945 (59 Stat. 
    77), to be advanced for compensation and expenses of attorneys and 
    other persons employed by any tribe, band, or other identifiable 
    groups of Indians of California under contracts approved by the 
    Secretary . . . Provided further, That in addition to the amount 
    appropriated herein, tribal funds may be advanced to Indian tribes 
    for such purposes as may be designated by the governing body of the 
    particular tribe involved and approved by the Secretary. Any tribal 
    funds advanced under this authority shall be reported to the 
    Congress in the annual budget for the next succeeding fiscal year
        Mr. [Thomas H.] Werdel [of California]: Mr. Chairman, I make a 
    point of order, on the ground that it is legislation on an 
    appropriation bill, against the language commencing with the word 
    ``Provided'' in line 3, page 229, reading:

            That $100,000 of the amount appropriated herein shall be 
        available from the judgment fund appropriated for the Indians 
        of California by section 203 of the Act of April 25, 1945 (59 
        Stat. 77), to be advanced for compensation and expenses of 
        attorneys. . . .

        The Chairman:(20) Does the gentleman from Washington 
    desire to be heard on the point of order?
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20. Jere Cooper (Tenn.).
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        Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede 
    the point of order.
        The Chairman: The Chair sustains the point of order.

Farm Labor Supply Revolving Fund

Sec. 28.8 Language in an appropriation bill providing for transfer of 
    funds from the farm labor supply revolving fund for expenses of the 
    Mexican farm labor program was held to be legislation and not in 
    order.

    On Mar. 27, 1958,(1) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R.

[[Page 5729]]

11645), a point of order was raised against the following provision:
---------------------------------------------------------------------------
 1. 104 Cong. Rec. 5630, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

               Salaries and expenses, Mexican farm labor program

            For expenses, not otherwise provided for, necessary to 
        carry out the functions of the Department of Labor under the 
        act of July 12, 1951, as amended, $1,550,000, to be derived by 
        transfer from the farm labor supply revolving fund: Provided, 
        That reimbursement to the United States under agreements 
        hereafter entered into pursuant to section 502 of the act of 
        July 12, 1951, as amended, shall include all expenses of 
        program operations except those compliance activities 
        separately provided for herein.

        Mr. [William R.] Poage [of Texas]: Mr. Chairman, I make the 
    point of order that this is legislation on an appropriation bill. . 
    . .
        The Chairman: (2) Does the gentleman from Rhode 
    Island desire to be heard on the point of order?
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 2. Eugene J. Keogh (N.Y.).
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        Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, we must 
    concede the point of order.
        The Chairman: The point of order is sustained.